Pool Operators Face ADA Deadline, Continued VGB Compliance Issues

Shadow of Doubt: Just two years after updating pool drains to comply with the Virginia Graeme Baker Pool & Spa Safety Act, operators of public swimming pools, wading pools and spas must be prepared to comply with the new Americans with Disabilities Act.

Right now, club members everywhere are filling up group exercise classes, putting in extra time on the cardio machines and booking spa treatments in a last-minute push to be ready for pool season.

Club operators also have a pool deadline looming. Just two years after updating their pool drains to comply with the Virginia Graeme Baker (VGB) Pool & Spa Safety Act, operators of public swimming pools, wading pools and spas must be prepared to comply by March 15, 2012, with the new Americans with Disabilities Act (ADA) Standards for Accessible Design, issued by the Department of Justice (DOJ).

Most public aquatic facility operators already are familiar with the majority of these ADA access standards, which were finalized in 2004 as guidelines. However, as of September 2010, they became legal standards, and they include a few major changes operators may not yet know about. Making these changes could be costly for many facilities—but it could prove even more costly to be ignorant of details of the new law, as some found when the VGB Act came into effect.

Previously, ADA guidelines called for one means of accessible entry for each pool. The new law is more specific, requiring a lift or sloped entry in pools measuring less than 300 lineal feet. Pools larger than 300 lineal feet must have two means of access—the first must be a lift or slope, but the secondary means of access can be either of those or a transfer wall, transfer system or stairs.

In addition, wading pools must now have a sloped entry. This requirement is likely to have the greatest financial impact on pool operators. Not only would club operators lose income during renovations due to a closed pool, but the cost of adding a sloped entry would run about $20,000, according to Andrew Lacelle, an aquatic designer at the architecture firm Ohlson Lavoie Collaborative, Denver. Even the less-expensive options for ADA compliance could be difficult for many already cash-strapped facilities to afford. With pool lift prices ranging from about $4,000 to $8,000, adding a second means of access to each pool or spa at a large public facility can become expensive.

Craig Feldman, aquatics program coordinator for the Federal Way Community Center in Federal Way, WA, says the pools and spas in his facility, which opened in 2007, are already compliant. However, he says the cost of ADA compliance may be too great for many of the state’s community pools.

“A lot of our pools are fairly old,” he says. “Many were built out of a 1969 bond issue. Their lifespan was supposed to be 30 years, so they’ve already exceeded [that], and they’re just trying to limp along.”

At LifeCenter Plus, a for-profit fitness facility in Hudson, OH, the club’s aquatics program director, Jim Clark, is still assessing how to ensure LifeCenter is ADA compliant by next March. But he says he is ahead of the game because he is aware of the requirements while many of his colleagues are not.

“This is all clear as mud right now to most people in the industry,” Clark says.

While both operators raise valid concerns, Jen Hartfield, government affairs director for the Association of Pool & Spa Professionals (APSP), says ADA compliance should not be a worry for most club operators because the bulk of the access standards—and the equipment and knowledge needed to implement them— have been around for years.

The concerns that some aquatics facility operators have regarding ADA requirements are likely to remind them of the issues they encountered when bringing their pools into compliance with the VGB Act. For many of them, it won’t be a pleasant memory, and for quite a few, it won’t be a memory at all—more than three years after Congress passed the act, many public pools are still noncompliant.

VGB was named for Virginia Graeme Baker, the 7-year-old granddaughter of former Secretary of State James Baker. She died by drowning after becoming trapped by the suction created by the drain at the bottom of her family’s hot tub. The federal law, which went into effect in December 2008, required all public pools and spas to be fitted with anti-entrapment covers on every drain. The act also required pools or spas with a single main drain other than an unblockable drain to have either an automatic shut-off system, gravity drainage system, safety vacuum release system (SVRS), suction-limiting vent system or to disable the drain. If a pool or spa has multiple main drains, the law dictated that these must be at least 3 feet apart.

Although Clark made the necessary adjustments to the pools and spas at LifeCenter Plus before the deadline, he says a federal law was not warranted.

“Many of the incidents that led to the VGB Act came from people who had poorly maintained pools without the correct covers in place,” Clark says. “So, yes, there was a problem, but the real problem was maintenance.”

Another facility manager, who asked that his name be withheld, agrees with Clark that entrapment dangers could have been addressed by proper maintenance.

“VGB was a kneejerk reaction to a situation that really didn’t need to happen,” he says. “There have been less than a dozen entrapment issues in the country. Most of those were in pools where the main drain was either missing its cover or malfunctioning in some way. The only people that came out of VGB in better shape than before are the engineers that got extra jobs out of this and the people who manufacture drain covers.”

Despite objections like these, Tom Lachocki, CEO of the National Swimming Pool Foundation (NSPF), says that pool operators generally have been positive about the VGB Act and have had more unanimity about the importance of preventing suction entrapment than about any other industry issue. He also says the industry has a good attitude toward ADA standards, which enable more people to access aquatics facilities.

The initial dissent regarding the VGB Act came from the belief by many people in the industry that drowning rather than entrapment danger should be the main focus of a federal aquatic safety law, Lachocki says. On average, fewer than two fatalities per year occur due to entrapment while hundreds die every year due to drowning, he says.

However, the VGB Act does address the issue of drownings in addition to drain cover issues, says Kathleen Reilly, pool and spa campaign leader for the Consumer Product Safety Commission (CPSC), the agency charged by Congress with implementing VGB. The act provides for funding toward educating the public about the importance of learning to swim, watching children in the pool and putting fences around residential pools.

“And it also teaches that if you don’t have the right equipment in your pool, you could be at risk for an entrapment incident,” Reilly says.

The CPSC works with several industry associations (including the NSPF and APSP) to educate pool operators about the requirements. Even so, Ohlson Lavoie’s Lacelle estimates that more than two years later, about 30 percent of commercial pools still are not compliant. In many cases, lack of compliance is not due to unwillingness but to confusion about the actual requirements, he says. Lacelle has been hired by hundreds of facilities across the United States specifically to inspect their pools for VGB compliance. Despite having already been professionally repaired or retrofitted to comply, at least half the facilities he sees still require additional work to become fully compliant.

“The particulars of the VGB law are very specific, to the point where even the fasteners have detailed requirements,” Lacelle says. “Many pool contractors are not familiar with the complexity of the VGB law and simply install a new drain cover and possibly a SVRS and think the pool is compliant. Unfortunately in these scenarios, the facility owners believe they have done their due diligence to become compliant and may not discover they are not compliant until an accident occurs.”

Lachocki says one of the main problems is that more than half of the states require no verifiable training for people who operate public pools, so no one is training operators about compliance.

Although it is impossible to estimate how many pools still are not VGB compliant, Lachocki says the number may be high even though it’s certainly lower than when the act went into effect.

The rush to implement the law just one year after it was passed not only left little time to educate the industry about the act, but it also did not allow sufficient time for equipment suppliers to manufacture the necessary drain covers, Lachocki says, because that manufacturing process usually takes more than a year. This meant drain covers were not readily available before the deadline, he adds.

“So how can you say that you are putting more lives at risk by saying let’s wait and implement the educational program?” Lachocki asks. “People couldn’t get the covers anyway.”

Nevertheless, Lachocki says, the CPSC had only two choices: to maintain the deadline dictated by the law or to tell Congress that implementation by that deadline was impossible.

“They didn’t have a nice choice either way,” he says.

Now, nearly two-and-a-half years after they were required by law to come into compliance by installing new antientrapment drain covers, the operators of many aquatics facilities may soon have a new reason to wish that the CPSC had heeded the NSPC’s 2008 request to extend the deadline. Last month, the CPSC announced it was investigating the testing methods that led to the certification of many drain covers as VGB compliant.

According to a CPSC statement, the investigation “has revealed that the testing protocols used by some laboratories may have been improper and, as a result, some covers certified by these laboratories may not comply” with the VGB Act.

The statement goes on to say that due to problems with the testing, some VGB-certified drain covers may still fail to prevent entrapment. CPSC says it aims to identify the affected drain covers and issue new safety information by Memorial Day, the opening day for many public pools.

CPSC’s current education efforts may bring more pools into compliance, but some facilities simply cannot afford to comply.

“Costs can range from a few hundred dollars to thousands, depending on what all needs to be retrofitted for compliance,” says Tracynda Davis, director of environmental education for the NSPF.

When the Federal Way Community Center opened in 2007, its amenities were considered state of the art—and that included adherence to safety standards, including the current pool codes. However, just two years after opening, the facility had to renovate its two pools and spa at a cost of $30,000, including permits and engineering but not the costs of draining, refilling and chemically treating the new water, Feldman says.

That figure might have been much lower had the CPSC, still struggling to define the specific terms used in the act long after its implementation, not revised in March 2010 its definition of what constitutes an “unblockable drain.” Unfortunately, Feldman had already spent about $8,000 to $10,000 installing custom-built frames for two 7-foot drains that qualified as unblockable by the revised definition.

The Federal Way Community Center paid for its renovations by drawing from a fund set aside for capital improvements, which is financed by a state real-estate excise tax. But other facilities had to resort to drastic measures to become compliant, such as disabling their pools’ main drains by filling them with concrete, Feldman says.

“In order for them to drain their pools from now on, they’ll have to bring in supplemental pumps,” he says. “If you’re an agency that doesn’t have access to a public works department and can’t get a trash pump in there, you’re going to be spending some money on that. But it kept their pools open.”

To become fully ADA compliant also could be an expensive prospect for many facilities, but the act does allow some flexibility, which should mean that operators won’t have to resort to drastic measures, such as closures, if they simply cannot afford to comply. Public facilities can be exempted from adopting the access standards if they can demonstrate that doing so is not “readily achievable” or would create “undue hardship.”

“However, the Department of Justice has made it very clear that, given the flexibility and cost of a pool lift, it would be very difficult for any entity to escape their responsibility to provide access to a swimming pool,” the APSP’s Hatfield says.

Unfortunately, facility operators do not have a formula to determine whether they would be exempt from purchasing equipment or making alterations to comply with the ADA standards. This will be decided at the federal level on a case-by-case basis, says Hatfield, who adds that even if operators feel strongly that they are not able to become ADA compliant for whatever reason, they still have the responsibility of making inquiries related to the feasibility of becoming compliant and maintaining relevant documentation, such as construction estimates. Some financial assistance is available to enable businesses to comply with the ADA standards in the form of Internal Revenue Service (IRS) tax credits and deductions. Small businesses (those with 30 or fewer full-time employees or that had total revenues of $1 million or less in the previous tax year) can apply for a Disabled Access Credit toward expenses incurred by making alterations to improve accessibility. Businesses of any size are eligible for a tax deduction of up to $15,000 per year on the costs incurred in removing architectural barriers in existing facilities or making alterations.

Both the VGB and ADA acts are federal laws, but their enforcement is subject to the laws and codes of the state or local jurisdiction that adopts the acts. However, Hatfield points out, even operators in states that have not adopted the acts are subject to comply with them, and the federal government can enforce them when this is not being done (or done satisfactorily) at a state or local level.

The VGB Act has been adopted in very different ways across the country. North Carolina is the only state to adopt the full act passed by Congress. Other states have adopted only parts of the act, and still others have added their own specific provisos. Compliance inspections of pools and spas are generally the responsibility of a state or local agency, such as a county department of health, but these agencies are only able to implement or enforce what state legislation permits, as directed by the state’s attorney general.

Some local authorities enforce the VGB Act more stringently than others. The CPSC does not keep a central database of pool closings due to noncompliance, but these are a matter of public record—and in at least one state, VGB-related pool closings became big news.

The Las Vegas Sun newspaper reported in March 2009 that many public pools in the area were unable to open, not because they were noncompliant but because the local authority had not had time to approve the work done to make the pools compliant. Nevada law requires that remodeled public pools be inspected and approved by the district, and the Southern Nevada Health District waiting list for inspections was at the time more than three months behind.

The CPSC has the authority to fine or close pools that are not compliant, but Reilly says this is not its priority.

“CPSC can issue fines but has not to date, as we are focusing most of our energy on education and promoting compliance,” she says.

The details of ADA enforcement are still in limbo. The DOJ has already certified, or is in the process of certifying, the accessibility requirements of 10 states, which means that the states’ requirements meet or exceed ADA standards. But whether or not the local laws or codes affecting their facility have been certified, operators should still make sure they understand and comply with the ADA standards, Hatfield says. The APSP website features a 30-minute webinar about ADA for pool professionals.

There is another angle to ADA enforcement that pool operators should consider. In addition to the public agencies charged with ensuring ADA compliance, grassroots advocacy agencies and individual citizens also could get involved by reporting noncompliance to the DOJ or filing a civil lawsuit.

This is one reason LifeCenter’s Clark says facilities need to ensure they are on the ball regarding the ADA standards.

“With VGB, people didn’t know what to look for, but with the ADA requirements … well, you either have a lift or you don’t,” he says. “It’s going to be a lot more obvious if you’re compliant or not.”

The DOJ promotes mediation and settlements as the preferred ways to resolve ADA-related disputes, but if negotiations fail, it is authorized to file a civil lawsuit to force the operator into compliance and can impose civil penalties of up to $55,000 for a first violation and $110,000 for a subsequent violation. Other groups, including private citizens, can sue in federal court to force facilities into compliance but cannot request financial penalties beyond recouping the cost of a trial. State laws may allow for punitive damages. In some cases, this has led to major settlements.

“There are certain attorneys that make their living off this,” Hatfield says.

All of the industry experts contacted by Club Industry said that they believed ADA would not present the issues VGB did for many pool operators because they will have had more time to become familiar with the requirements prior to implementation. The necessary equipment already is readily obtainable, and the law allows some flexibility for circumstances that might have led to pool closures in the case of VGB, even if the operators had good intentions.

That last reason is important, Lachocki says, because keeping pools open should be the industry’s priority. He says the downsides of closures outweigh the risks posed by noncompliance.

Reduced access to public pools, he points out, means fewer children will have the chance to learn to swim, few people will be trained as lifeguards and fewer people will derive the health benefits associated with swimming.

“We should never forget the value that swimming pools bring to help people live longer, happier, healthier lives,” Lachocki says. “We have to continue to find ways to keep those pools open and keep people using those pools—and, of course, we need to do that as safely as possible.”